AILA Strongly Opposes Forced DNA Collection for Civil Detainees

WASHINGTON, DC - The American Immigration Lawyers Association (AILA) today expressed grave concern about the issuance of a Department of Justice final rule, effective January 9, 2009, that will have serious implications for people who are detained on possible immigration violations by forcing them to submit their DNA to federal officials.

Charles H. Kuck, President of the American Immigration Lawyers Association stated, "The stunning overreach of this new rule raises serious constitutional and privacy concerns. It casts civilly detained immigrants as criminals, requiring them to submit to DNA testing even in cases where there is no suggestion of any criminal violation."

Prior to the finalization of this rule, the federal government was authorized to collect DNA samples only from persons convicted of felonies, violent crimes, aggravated sexual abuse, or serious military offenses. This rule expands that authority to require federal agencies to collect DNA samples from non-U.S. persons who are detained under the authority of the United States, among other provisions.

Recent high-profile cases of U.S. citizens mistakenly detained by immigration authorities highlight the likelihood that individuals who are lawfully present in the U.S. with no criminal history will be subjected under this new rule to DNA testing without their consent. The preface to the rule indicates that lawful permanent residents and U.S. citizens should be not subjected to DNA testing. However, the final rule contains no explicit protections to ensure these populations are excluded from its coverage. For example, the rule does not include any explicit protections or agency requirements regarding individuals detained while pursuing a claim to U.S. citizenship or residents detained pending a determination about their residency. Furthermore, the rule provides no recourse for individuals to remove their DNA from federal criminal databases even in cases where they have been wrongfully detained or may have even become citizens or proven their U.S. citizenship after being held in detention.

Kuck noted that "this rule is overbroad and continues the Administration's unwarranted and counterproductive trend of treating civil immigration detainees like convicted criminals."

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.